• Accidents

Update to California’s law on Design Immunity

Michael Avanesian

May 2, 2023

Under the Government Claims Act[1], a public entity can be held liable for either creating a dangerous condition on its property[2] or failing to protect against such a condition when the entity had notice of the danger and sufficient time to remedy the situation[3].

The statutory defense of design immunity, however, precludes liability for injuries that were allegedly caused by a defect in the design of a public improvement when certain conditions are met.[4]

To obtain design immunity, a public entity must establish that[5]:

1. The challenged design was discretionarily approved by authorized personnel and
2. that substantial evidence supported the reasonableness of the plan.

On April 27, 2023, the California Supreme Court unanimously held that even if a governmental entity is immune from suit due to design immunity, it can still be held responsible for its failure to warn.

The California Supreme Court articulated the following three-part test to establish a failure to warn claim against a governmental entity:

1. the public entity had actual or constructive notice that the approved design resulted in a dangerous condition (see §§ 835, subd. (b) & 835.2 [defining “notice” within the meaning of § 835, subd. (b)]);
2. the dangerous condition qualified as a concealed trap, i.e., “would not [have been] reasonably apparent to, and would not have been anticipated by, a person exercising due care” (§ 830.8); and
3. the absence of a warning was a substantial factor in bringing about the injury.

This is a huge win for consumers in California and it could not be done without a lot of effort and sacrifice by many people. You can read the entire case here.

In particular, the Counsel for the Plaintiffs in this case were Mardirossian & Associates; Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian, Adam Feit; The Linde Law Firm, Douglas A. Linde, Erica A. Gonzales; Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy; Ehrlich Law Firm and Jeffrey I. Ehrlich.

And the Consumer Attorneys of California filed a friend of the court brief written by Singleton Schreiber McKenzie & Scott and Benjamin I. Siminou.

[1] Gov. Code, § 810 et seq.

[2] Gov. Code, § 835, subd. (a): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=835.

[3] Gov. Code, § 835, subd. (b): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=835.

[4] Gov. Code § 830.6: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=830.6.

[5] Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 (Cornette).